Do anti-discrimination laws trump free speech and religious expression? The Eighth Circuit, taking its cues from three recent Supreme Court decisions, has revived a lawsuit brought by videographers against Minnesota’s interpretation of its Minnesota Human Rights Act (MHRA). In a 2-1 decision, the panel ordered the district court to reconsider its previous dismissal and heavily hinted that a temporary injunction against enforcement of the MHRA is appropriate:

In a 2-1 decision, the 8th U.S. Circuit Court of Appeals in St. Paul, Minnesota, said Angel and Carl Larsen can pursue claims that the law violates their constitutional rights to free speech and to freely exercise their religious beliefs.

It ordered U.S. District Judge John Tunheim in Minneapolis, who had dismissed the lawsuit in September 2017, to decide whether the Larsens and their company, Telescope Media Group, deserve a preliminary injunction barring enforcement of the law. …

In Friday’s decision, Circuit Judge David Stras said the Larsens could try to show that their videos carried their “own message,” which Minnesota’s law interfered with “by requiring them to say something they otherwise would not.”

Stras, an appointee of President Donald Trump, distinguished antidiscrimination laws targeting conduct and only incidentally affecting speech, calling it “unquestionably” acceptable to require an employer to remove a “White Applicants Only” sign.

“Here, by contrast, Minnesota is targeting speech itself,” he wrote.

In his ruling, Stras cited two of three specific cases decided by Supreme Court in its 2017-18 session that I had noted was a trifecta against compelled government speechMasterpiece Cakeshop, Janus, and NIFLA. Put together, the three cases torpedo federal and state statutes that result in government-compelled speech, and Stras’ ruling relies heavily on the first two, among others. Stras argues that Minnesota’s interpretation of the MHRA to compel videographers to work same-sex weddings fails under strict scrutiny because regulating speech is not a “compelling state interest”:

Although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to “affect public attitudes and behavior.” Id. According to their complaint, they will tell “healthy stories of sacrificial love and commitment between a man and a woman,” depict marriage as a divinely ordained covenant, and oppose the “current cultural narratives about marriage with which [the Larsens] disagree.” By design, they will serve as a “medium for the communication of ideas” about marriage. Id.; cf. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (“[R]eligious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”). And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial “editorial control and judgment,” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974), including making decisions about the footage and dialogue to include, the order in which to present content, and whether to set parts of the film to music. The videos themselves are, in a word, speech. …

As these cases demonstrate, regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be. It is a “bedrock principle . . . that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989); see also Masterpiece Cakeshop, 138 S. Ct. at 1731 (“[I]t is not . . . the role of the State or its officials to prescribe what shall be offensive.”). After all, the Westboro Baptist Church could carry highly inflammatory signs at military funerals, see Snyder v. Phelps, 562 U.S. 443, 448– 49, 460–61 (2011), the Nazis could march in areas heavily populated by Jewish residents, see Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43–44 (1977) (per curiam), and an activist could burn the American flag as a form of political protest, see Johnson, 491 U.S. at 399.

Stras also relies on Janus in a similar manner:

The First Amendment, which applies to the states through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.” U.S. Const. amend. I. It promotes the free exchange of ideas by allowing people to speak in many forms and convey a variety of messages, including those that “invite dispute” and are “provocative and challenging.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). It also prevents the government from “[c]ompelling individuals to mouth support for views they find objectionable.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). As the Supreme Court has made clear, “[t]here is no room under our Constitution for a more restrictive” approach because “the alternative would lead to standardization of ideas . . . by legislatures, courts, or dominant political or community groups.” Terminiello, 337 U.S. at 4–5. …

The Supreme Court has “held time and again that freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.” Janus, 138 S. Ct. at 2463 (internal quotation marks and citation omitted). As Janus recognized, the latter is perhaps the more sacred of the two rights. See id. at 2463– 64. After all, the “choice of a speaker not to propound a particular point of view . . . is presumed to lie beyond the government’s power to control.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 654 (2000) (citation omitted).

To apply the MHRA to the Larsens in the manner Minnesota threatens is at odds with the “cardinal constitutional command” against compelled speech. Janus, 138 S. Ct. at 2463. The Larsens do not want to make videos celebrating same-sex marriage, which they find objectionable. Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make. Even if the Larsens’ desire to selectively speak is “provocative” and “stirs people to anger,” Terminiello, 337 U.S. at 4, Minnesota cannot “coerce[ them] into betraying their convictions” and promoting “ideas they find objectionable,” Janus, 138 S. Ct. at 2464. Compelling speech in this manner, as the Supreme Court made clear in Janus, “is always demeaning.” Id. This is especially true here, because Minnesota insists that the Larsens must be willing to convey the same “positive” message in their videos about same-sex marriage as they do for opposite-sex marriage.

The dissent from Justice Jane Kelly tries to argue that none of the three cases apply, and that NIFLA doesn’t address this issue. Instead, Kelly relies on the primacy of public-accommodation laws, an argument that lost in Masterpiece Cakeshop and NIFLA:

The axiom that places of public accommodation are open to everyone is deeply rooted in the American legal system. Since at least the sixteenth century, the common law recognized that innkeepers and common carriers were obligated to serve all potential customers. See Lombard v. Louisiana, 373 U.S. 267, 276–77 & n.6 (1963) (Douglas, J., concurring); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 571 (1995); Bell v. Maryland, 378 U.S. 226, 296–99 (1964) (Goldberg, J., concurring). After the Civil War, states began codifying those protections through public accommodations statutes to protect African Americans from discrimination. Hurley, 515 U.S. at 571 (discussing Massachusetts’s adoption of the first public accommodations law in 1865); see also State Public Accommodation Laws, Nat’l Conf. St. Legislatures, http://www.ncsl.org/research/civil-and-criminal-justice/state-publicaccommodation-laws.aspx (last updated April 8, 2019) (indicating that all but five states have such laws). The federal government followed suit with the Civil Rights Act of 1875 and later the Civil Rights Act of 1964, Title II of which contains the current requirement: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a(a).

Public accommodations laws enforce the basic and fundamental right to be treated as an equal in American society. Private discrimination “sap[s] the moral fiber of the Nation,” 110 Cong. Rec. 7379 (1964) (statement of Sen. Kennedy), and “mars the atmosphere of a united and classless society in which this Nation rose to greatness,” 110 Cong. Rec. 7399 (1964) (statement of Sen. Magnuson) (quoting President John F. Kennedy, Feb. 28, 1963). Title II and laws like it “send[] a clear message to . . . places of public accommodations” that they may not deny historically disadvantaged groups the “equally effective and meaningful opportunity to benefit from all aspects of life in America.” 135 Cong. Rec. 8506 (1989) (statement of Sen. Harkin) (discussing the Americans with Disabilities Act).

Few would argue against public accommodation laws in their traditional enforcement. Do public accommodation laws take precedence over the First Amendment, however? Can government dictate speech in the same way they regulate commerce? The Supreme Court has answered with an emphatic no, which is why this is going back to the district court and a likely injunction against Minnesota. Eventually it will make its way to the Supreme Court, and perhaps it will go there next — but Minnesota might take care not to push its luck. The current configuration of the court is likely even less sympathetic to compelled government speech than its 2017-18 line-up.

The best answer to all of this is a free market. If these videographers don’t want to work same-sex marriages — as opposed to refusing service of any kind to minorities — then that means others will get more business in the future. If that offends enough people, the word of mouth in the marketplace will punish the provider. Why not just leave it at that?